Hawaii Court Upholds Public Responsibility In Environmental Cases

Property professor's finger-pointing misses the point.

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January 27, 2013

Reading time: 5 minutes.

In order to avoid the maxim about “a lie told often enough becomes the truth,” we’d respectfully like to respond to Professor David Callies’s drumbeat argument that the Hawaii Supreme Court somehow unfairly sides with community groups in cases involving the environment and development. (See, for example, Hawaii Developers Facing Tougher Requirements).

While Callies is entitled to his own opinion, it deserves mention he speaks not as an unbiased law professor, but rather as an advocate who has filed numerous unsuccessful court briefs on behalf of big landholders and corporations. He’s represented the developer 1250 Oceanside Partners for its infamous Hokulia project; the Land Use Research Foundation in opposing traditional and customary Hawaiian gathering rights and the public trust in water resources; and the Hawaii Developer’s Counsel in the Turtle Bay matter — just to name a few of his clients.

Callies accuses the Court of ruling disproportionately in favor of groups like Sierra Club, Earthjustice, and Hawaii’s Thousand Friends, who “generally sue when development permits are granted anywhere.” This cartoonish view is far removed from reality.

Environmental organizations are primarily grassroots nonprofits with limited resources. They can afford to pursue only the worst violations. Of the countless permits and approvals being granted all the time, only a handful are challenged. The high success rate shows the Hawaii judicial system is doing its job, not that it’s corrupt or biased.

As for track records, we need look no further than the Land Use Commission, which has almost never denied a land use reclassification, or the City and County of Honolulu Department of Permit and Planning, whose past director publicly stated he supported every development project regardless of where it occurred. Over 50 percent of Oahu’s best agricultural land has been filled in by concrete and asphalt in the past 50 years. Oahu is struggling with crippling traffic problems, inadequate school facilities, and a poorly maintained wastewater system. There is a problem with our land use system: not with the courts, but rather with the influence of powerful corporate money and its ability to push through ill-conceived development projects.

Callies complains that the Supreme Court “created out of whole cloth” the requirement that the Turtle Bay Resort supplement its 25-year old Environmental Impact Statement. He was on the losing end of that argument before the Court, and he’s still wrong now. Supplemental EISs are a well-established requirement under the law, and the Court correctly rejected his argument that an EIS is valid forever, no matter how much circumstances change.

Fundamentally, Callies’s bone of contention stems from the mistaken belief that property owners should be entitled to build when and where they want to. On the contrary, developers have no God-given “right” to build large urban sprawl projects on land set aside for agriculture or conservation. Hawaii wisely distinguishes between industrial/urban, where development is generally free to occur, and conservation/agricultural, where land more closely regulated. We created this careful management process because of our experiences in the 1960s, when development ran amok and people realized the need for some restraint.

Public participation is essential to good planning. Responsible limits on development are important to any healthy democratic society, let alone our isolated island communities. Such principles allow government officials to manage our public resources and infrastructure, safeguard against environmental harms, and recognize the needs of the future. In 21st century Hawaii, we need this ethic of kuleana toward our island home and future generations more than ever.

About the authors:Robert Harris is the Director of the Sierra Club of Hawaii. Robert received an undergraduate degree in chemistry/environmental science from the University of Hawaii at Manoa and a law degree from the William S. Richardson School of Law at the University of Hawaii. After law school, Robert clerked for the Honorable Supreme Court Justice Simeon Acoba, Jr. and then practiced law at Damon Key Leong Kupchak Hastert.

Isaac Moriwake is an attorney with the Mid-Pacific office of Earthjustice. Isaac obtained his B.A. in International Relations from Pomona College, and his J.D., along with a Certificate in Environmental Law, from the William S. Richardson School of Law at the University of Hawaii. After law school, Isaac clerked for the Honorable Supreme Court Justice Paula A. Nakayama and also worked in private practice.

Both Robert and Isaac have been involved in many environmental litigation matters in Hawaii over the past decade.

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